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Arutyun Demirchyan v. Alberto R. Gonzales

March 28, 2013

ARUTYUN DEMIRCHYAN, PETITIONER,
v.
ALBERTO R. GONZALES, ATTORNEY GENERAL, RESPONDENT.



The opinion of the court was delivered by: Stephen V. Wilson United States District Judge

I. INTRODUCTION AND BACKGROUND

SUPPLEMENTAL FINDINGS OF FACT AND CONCLUSIONS OF LAW

On May 5, 2008, the Ninth Circuit transferred this action to this Court pursuant to 8 U.S.C. § 1252(b)(5) in light of genuine issues of material fact regarding Petitioner's claim to citizenship. See Demirchyan v. Mukasey, 278 Fed. Appx. 778, 779 (9th Cir. 2008). The Court was charged with conducting a de novo hearing to evaluate Petitioner Arutyun Demirchyan's claim that he is a United States citizen. Id. This determination turns on whether Petitioner was born in 1976 or 1977. If, as Petitioner claims, he was born in 1977, then he is entitled to derivative U.S. citizenship because he was under the age of 18 when his mother became a U.S. citizen. However, if Respondent is correct that Petitioner was born in 1976, then he is ineligible for derivative citizenship because he was over the age of majority when his mother naturalized. See 8 U.S.C. § 1432(a) (West 1994), repealed by Child Citizenship Act of 2000, § 103, Pub. L. No. 106-395, 114 Stat. 1631.*fn1 Absent such derivative citizenship, Petitioner is subject to the removal order issued against him in 2000.

To resolve Petitioner's status, the Court held evidentiary hearings on August 25, 2009 and June 16, 2010. (Dkt. 25, 41). On September 8, 2010, the Court issued its Findings of Fact and Conclusions of Law, holding that Petitioner was not a U.S. citizen because he failed to prove by a preponderance of the evidence that he was born in 1977. See Demirchyan v. Gonzales, No. CV 08-3452 SVW (MANx), 2010 WL 3521784 (C.D. Cal. Sept. 8, 2010). In so concluding, the Court principally relied on two documents indicating that Petitioner was born in 1976: (1) his Registration for Classification as Refugee; and (2) a copy of Petitioner's birth certificate issued in July 1988, which he submitted to the United States embassy in Moscow to emigrate to this country ("1988 Birth Certificate"). Id. at *13.

Conversely, the Court rejected other items of evidence that purported to show that Petitioner was born in 1977. Most notably, the Court rejected a copy of another birth certificate issued by Armenia in 2000 ("2000 Birth Certificate") on the ground that it was inadmissible hearsay, since it failed to satisfy the public records exception. Id. at *18. Additionally, the Court rejected as incredible the testimony of (1) Petitioner's mother, who averred that the 1988 Birth Certificate was inaccurate; and (2) Petitioner's brother, who suggested that the 1988 Birth Certificate was the product of a clerical error. Id. at *15. In short, the Court concluded that Petitioner was not a U.S. citizen pursuant to 8 U.S.C. § 1432(a), and returned the matter to the Ninth Circuit for further proceedings. Id. at *18-19.

Upon return to the Ninth Circuit, Petitioner filed a motion to supplement the record with "new" evidence. Fed. R. App. P. 10(e)(2). Instead of granting the motion, the Ninth Circuit concluded that "there continues to be an unresolved 'genuine issue of material fact about the petitioner's nationality.'" (Dkt. 61). Accordingly, the panel returned the case to this Court "in order to permit the parties to move . . . for admission of documents not previously presented there, and to permit the district court to reconsider its findings of fact and conclusions of law in light of any such evidence it deems admissible." (Id.).

On July 19, 2011, pursuant to the Ninth Circuit's order, Petitioner lodged with this Court twelve "new" Exhibits A through L. (Dkt. 65). The most prominent of these documents appears to be a copy of Petitioner's birth certificate issued by Armenia in 1997, which indicates a birthdate of July 27, 1977 ("1997 Birth Certificate").

(Dkt. 65, Ex. A). The remaining eleven exhibits also show a birth year of 1977, including copies of two U.S. passports issued to Petitioner (Exs. B, C); a copy of an Armenian passport (Ex. D); a copy of Form I-90 application to replace Permanent Resident Card filled out by Petitioner in December 2001 (Ex. E); various pages from the Immigration and Naturalization Service ("INS") database (Exs. F-K); and a copy of an Application for Certificate of Citizenship submitted by Petitioner in October 2000 (Ex. L).

On July 25, 2011, the Court explained that it read the Ninth Circuit's transfer order to mean that the Court must "determine whether the new documents attached on Appeal are admissible and then make changes to its findings, if necessary." (Dkt. 68). To this end, the Court ordered the Petitioner "to file a memorandum with attached declarations that allow the Court to determine whether the documents are admissible," and "if [they] are found admissible, why they should change the Court's earlier findings." (Id.). Petitioner complied (Dkt. 69), and Respondent filed a response (Dkt. 71).

On October 24, 2012, the Court conducted further evidentiary hearing to elicit testimony from witnesses who could speak to these "new" exhibits, in particular the purported 1997 Birth Certificate. (Dkt. 79, 82). The Court heard testimony from (1) Petitioner Arutyun Demirchyan; (2) Petitioner's mother, Susanna Demirchyan; (3) Asatur Guyumjyan; and (4) Zara Hovanisyan. (Dkt. 86).*fn2

Having reviewed the parties' briefing, documentary evidence, and live testimony with respect to these "new" exhibits, and taking into account the Court's previous findings and conclusions, the Court now re-examines the merits of Petitioner's claim.

II. FINDINGS OF FACT

The Court set forth several findings of fact in its previous Order dated September 10, 2008, which need not be repeated here. Demirchyan, 2010 WL 3521784 at *13-18. Since then, the Court has received Petitioner's submission of twelve "new" exhibits as well as affidavits and oral testimony from witnesses in support of these documents. The sole inquiry is whether such evidence leads the Court to alter its original findings. Having reviewed these evidentiary submissions and related pleadings, the Court makes the following additional factual findings.

A. 1997 Birth Certificate (Exhibit A)

Petitioner has submitted a copy of a birth certificate that, based on the English translation, appears to have been issued by Armenia on April 29, 1997, and which states that Petitioner was born on July 27, 1977. (Dkt. 65, Ex. A).

Before it can discern the evidentiary value of the 1997 Birth Certificate, the Court must determine if it is admissible. "Hearsay and authentication are separate and independent requirements for evidentiary admissibility." Demirchyan, 2010 WL 3521784, at *3. The Court addresses the document's authenticity first.

1. Authentication

A document may be authenticated by virtue of its own contents, Fed. R. Evid. 902, or on the basis of extrinsic evidence "sufficient to support a finding that the matter in question is what its proponent claims." Fed. R. Evid. 901(a).

a. Self-Authentication

The 1997 Birth Certificate is not self-authenticating. Title 28 U.S.C. § 1741 provides that "[a]n official record or document of a foreign country may be evidenced by a copy, summary, or excerpt as authenticated as provided in the Federal Rules of Civil Procedure." 28 U.S.C. § 1741. The Federal Rules of Civil Procedure provide:

(A) In General. Each of the following evidences a foreign official record--or an entry in it--that is otherwise admissible:

(i) an official publication of the record; or

(ii) the record--or a copy--that is attested by an authorized person and is accompanied either by a final certification of genuineness or by a certification under a treaty or convention to which the United States and the country where the record is located are parties.

(B) Final Certification of Genuineness. A final certification must certify the genuineness of the signature and official position of the attester or of

any foreign official whose certificate of genuineness relates to the attestation or is in a chain of certificates of genuineness relating to the attestation. A final certification may be made by a secretary of a United States embassy or legation; by a consul general, vice consul, or consular agent of the United States; or by a diplomatic ...


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